Utah ‘phantom road’ claim gets appeals court hearing

The State of Utah and San Juan County are claiming that the stream bed of Salt Creek is a highway under a repealed federal law that was passed to enable settlement of the West. Photo courtesy Ted Zukoski. Click on the image to view a slideshow of Salt Creek.

Ecologically sensitive stream in Canyonlands National Park at issue in long-running battle over local rights-of-way claims

By Summit Voice

SUMMIT COUNTY — A long-running battle over the interpretation of an obscure federal law may move one step closer to resolution this week, as the federal Tenth Circuit Court of Appeals hears oral arguments in a case addressing state claims to a highway right-of-way in Salt Creek, an ecologically sensitive streambed in Canyonlands National Park.

The National Park Service closed the stream bed to vehicles in 2005, citing damage to natural resources, including crushed vegetation, water pollution and degradation of wildlife habitat. San Juan County and the State of Utah sued the Park Service, arguing that the Park could not close the streambed to jeeps because it was a county and state highway, based on a settlement-era law known as R.S. 2477.

Congress passed the law in 1866 to help provide for consistent travel routes during the westward migration. The law was repealed in 1976, subject to valid existing rights — and those existing rights have been a source of constant friction since then, as some local governments make far-fetched claims about what might or might not have been designated as a road under that law.

A trial court ruled that the few travelers who had ventured up the stream before Canyonlands became a national park in 1964 did not transform the creek into a “highway” under federal law.

State and local officials appealed that ruling, leading to this week’s appellate court hearing.

“The state’s misguided effort to overlay some of Utah’s most beautiful and remote landscapes with a spiderweb of roads will be devastating to the health, scenery and quiet of unique natural treasures like Salt Creek,” said Heidi McIntosh, associate director of the Southern Utah Wilderness Alliance. “And at a cost of over $1 million in attorneys’ fees, it’s a financial boondoggle to boot.”

The appeals court decision may resolve similar outstanding claims in other jurisdictions, setting a legal precedent for when and whether states and counties can claim highway rights-of-way across federal public lands.

Public land advocates say Utah and other states have stretched the law beyond Congress’s original intent in an effort to undermine federal ownership, management and conservation of national parks and other sensitive federal lands.

Conservation group the Southern Utah Wilderness Alliance and the non-profit environmental law firm Earthjustice filed a friend-of-the-court brief earlier this year asking the appeals court to reject Utah’s extreme arguments. Grand Canyon Trust, The Wilderness Society, Sierra Club, and the National Parks Conservation Association joined the brief.

“Salt Creek is a rare desert gem, a stream bursting with life, and the area with the highest recorded density of archeological sites, including ancient cliff dwellings, in Canyonlands,” said Earthjustice attorney Ted Zukoski. “Turning this creek into a highway would not only degrade one of America’s iconic national parks, it would be wrong as a matter of law.”

This appeal is an early legal salvo in the State of Utah’s campaign to gain judicial recognition of approximately 15,000 highway rights of across federal public land, including areas that have been protected from roads and off-road vehicle use for years.

These remarkably scenic lands include Utah’s awe-inspiring national parks, wilderness areas, wilderness study areas, national wildlife refuges, the Grand Staircase Escalante National Monument, Dinosaur National Monument and the Glen Canyon National Recreation Area.

The State of Utah and a number of Utah counties filed twenty two lawsuits in May 2012 that would blanket the state with about 15,000 thousand “highways,” many of which are actually faint trails, cow paths, streambeds and long-abandoned prospector tracks.